Request By:
Brian and Barbara Kitchens
David Fields
Kimberley Phelps
Richard Deye
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Butler County Fiscal Court violated the Open Records Act in the disposition of Brian and Barbara Kitchens' April 25, 2008, request for "any and all records of the . . . Fiscal Court concerning the closure of Womack Cemetery Road in Butler County, Kentucky . . . includ[ing], but not limited to, voting records, minutes, or reports concerning the closure of said road." For the reasons that follow, we find that although the Butler County Fiscal Court erred in failing to address the Kitchens' request for all records and reports relating to the closure of Womack Cemetery Road, the Fiscal Court did not violate the Open Records Act in requiring the Kitchens to review minutes which might contain responsive material insofar as they reside in the county where the minutes are located and they did not precisely describe the minutes sought.
In a response dated April 28, 2008, the Fiscal Court advised the Kitchens:
Due to limited personnel, we do not do open records searches; however, any and all public records are available for you to look at between the hours of 8:00 a.m. until 4:00 p.m. Monday through Friday and 9:00 a.m. until 12:00 p.m. on Saturday.
Noting that "all records of the Butler County Fiscal Court are open to the public and filed in the Butler County Clerk's Office," the Fiscal Court invited the Kitchens to contact the County Judge/Executive for additional information.
In supplemental correspondence directed to the Kitchens following commencement of their appeal, a copy of which was mailed to this office, Butler County Attorney Richard J. Deye elaborated on the Fiscal Court's position. Reciting the language of KRS 61.872(2) and (3), and in particular that portion of the statute which relates to persons who reside in the same county where the records are maintained and persons who fail to precisely describe the records sought, Mr. Deye emphasized that the County Judge had in no way "denied [their] right to make a review of the public records of the records of the Butler Fiscal Court," and that "[t]he operative law with regard to open records does not require that the custodian of the records make a search of the records for any specific information which [they] desire." In closing, Mr. Deye reiterated that the information sought relative to the Womack Cemetery Road "may or may not exist . . . [but] the county simply does not have the resources to pay a person to read all of the minutes of the Fiscal Court to find a specific item of information." He reissued an invitation to the Kitchens "to review the minutes [themselves] during the normal business hours of the Butler County Clerk." Although the Fiscal Court did not fully discharge its obligation in responding to the Kitchens' request for records and reports relating to the road closure, we find no other violation of the Act in its disposition of their request.
As Mr. Deye correctly observes, the Fiscal Court did not deny the Kitchens' request for minutes containing pertinent information but instead afforded them the opportunity to conduct an on-site inspection of the minutes to locate that information. This action was consistent with the requirements found at KRS 61.872(3) which provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
As this office has so often observed, the Open Records Act contemplates records access by one of two means: on-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail upon prepayment of copying and postage costs. Applicants like the Kitchens, who reside in the same county where the records are located, may be required to inspect the records prior to receiving copies. The Fiscal Court may, therefore, require them to conduct an on-site inspection of the records prior to furnishing them with copies of those records.
Assuming, for the sake of argument, that the Kitchens resided and worked in a county other than the county where the public records are located, we believe that the Fiscal Court would not be required to mail them copies of all "voting records [and] minutes . . . concerning the closure of [Womack Cemetery] Road." As noted above, persons who wish to exercise their right of inspection by receipt of copies through the mail are required to "precisely describ [e] the public records, " and those records must be "readily available within the public agency. " KRS 61.872(3)(b). Thus, KRS 61.872(3)(b) places a greater burden on persons who wish to receive copies to describe "in definite, specific, and unequivocal terms" the desired records. 97-ORD-46, p. 2. Persons who wish to conduct on-site inspection of public records need only "describ [e]" the records. KRS 61.872(2);
Department of Corrections v. Chestnut, 250 S.W. 655, 661 (Ky. 2008) (declining the invitation to "add a particularity requirement where none exists" and holding that a request is adequate if "a reasonable person [can] ascertain the nature and scope of . . . [the] request").
Although the Kitchens' request for all "voting records [and] minutes . . . concerning the closure of [Womack Cemetery] Road" satisfied the latter standard, it did not satisfy the former standard. Because the Kitchens did not, or could not, precisely identify the minutes of specific meetings to which they desired access, they must expend their own time and energy in reviewing all of the Fiscal Court meeting minutes in order to locate and extract those which contain a reference to the closure of the Womack Cemetery Road. The Fiscal Court discharged its obligations under the Open Records Act, and in particular KRS 61.872(3) , by affording the Kitchens the opportunity to conduct an on-site inspection of the minutes of its meetings during its regular hours of operation. Accord, 99-ORD-210.
Having so concluded, we do not find that the Fiscal Court's obligations under the Act were fully discharged. The Kitchens also requested access to any reports or other records relating to the road closure. The Fiscal Court responded that "[d]ue to limited personnel, we do not do open records searches," and indicated that all of its records are "filed in the Butler County Clerk's Office." While we are in no position to speculate on the records management practices of the Butler County Fiscal Court, we believe it is not unreasonable to assume that some files, including subject matter and correspondence files, are maintained in the offices of the County Judge and/or the Fiscal Court members. If so, we believe that it is incumbent on the Court to conduct a search of its own files for responsive records and reports or make its files available to the Kitchens for inspection. Accord, 96-ORD-53. On this issue, the Attorney General has observed:
Where a person requests that a list of material be supplied or that he be furnished with broad categories of information, that person should be afforded the opportunity to expend his own time and effort in digging out the information which has not to date been compiled unless that information may be excluded from public inspection under KRS 61.878. Thus, if the records and materials requested, although not compiled in any kind of a list form, are nevertheless in the possession of the public agency, the files containing those public records should be made available for public inspection in order that the requesting party may attempt to secure the particular documents and records with which he is concerned.
OAG 86-51, p. 4, 5. Even more to the point, we have observed:
KRS 61.872 provides that all public records (except as otherwise provided) shall be open for inspection. If there were records or compilations accumulating the information [the requester] has requested, they would have to be disclosed. The issue here is not whether the request is a blanket one, or whether it is specific, as [the requester] contends. The issue is whether there exists records or compilations that would satisfy his request.
Obviously information documenting, in bits and pieces, facts [the requester] is attempting to determine, will appear among the many records that are generated . . . through time. Public agencies, however, are neither required nor directed by open records provisions to devote the taxpayer's time to reviewing voluminous records in order to compile information to satisfy a particular information request. The legislature has recognized this by providing only that records must be made available for inspection, not that information must be extracted and compiled. (Citation omitted.)
OAG 88-79, p. 3. If the Fiscal Court is certain that no responsive records exist within its own files, it is incumbent on the Court to expressly so advise the Kitchens in writing. 01-ORD-38, p. 9.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.